Alison S. Hightower (s.b.#112429)
Nossaman, Guthner, Knox & Elliott, llp
50 California street, 34th floor
San Francisco, CA 94111
Telephone: (415) 398-3600
Facsimile: (415) 398-2438

Attorneys for Proposed Amici Curiae

Wendel, Rosen, Black & Dean, llp
50 California street, 24th floor
Oakland, CA 94607
Telephone: (510) 834-6600
Facsimile: (510) 834-1928

Attorneys for Proposed Amici Curiae

Northern District OF CALIFORNIA

BAYVIEW HUNTERS POINT Community advocates, ET AL.



Case No: C-01-0750 TEH


Date: June 10, 2002
Time: 10:00 am
Ctrm.: 12
Judge: The Honorable Thelton E. Henderson

I. Introduction

The congestion management and countywide planning agencies (“CMAs”) of Alameda, Contra Costa, Marin, Napa, Santa Clara, Solano and Sonoma counties are charged with implementing strategies for reducing highway congestion in the Bay Area, improving the environment, and fostering a healthy economy. As part of their mission, the CMAs evaluate a myriad of transportation projects, including public transit, and after extensive review recommend certain projects for funding. If California’s Metropolitan Transportation Commission (“MTC”) agrees that these projects are consistent with regional plans and policies, these projects are included in the Regional Transportation Plan (“RTP”) and become eligible for state and federal government funding.

The CMAs support public transit, and a substantial amount of the projects incorporated in the current RTP promote public transit and other measures to improve air quality. Indeed, the 2001 RTP commits approximately 77 percent of available funding to public transit, and MTC projects that if the RTP is implemented, transit ridership is likely to increase by 15 percent above 1982 levels by the summer of 2007. None of the projects in the RTP were selected at the whim of the CMAs, but rather were carefully chosen after lengthy analysis and debate, including substantial input from the public, various environmental groups, and myriad local governments over periods as long as two years. The RTP is a balanced and effective plan and should not be disturbed by an injunction enforcing TCM 2.

But to reopen the RTP, as plaintiffs seek, may place CMA-sponsored and supported projects in legal limbo, jeopardizing current funding sources that have stringent time deadlines that must be met to keep funding. Although it is not clear that reopening the RTP necessarily results in a reallocation of funds, were that reallocation to happen, each CMA would be required to re-analyze the merit of the various projects currently included in the RTP. This will force the CMAs to devote scarce resources to repeating, in conjunction with MTC, the lengthy, expensive and laborious process of determining which projects should remain in the RTP.

This remedy is not in the public interest, particularly since it is based on three fundamental flawed assumptions:

• Assumption No. 1: That MTC can control the decisions of the millions of potential transit riders who on a daily basis determine whether to ride public transit;

• Assumption No. 2: That the more money that is devoted to public transit, the more people will ride public transit, so that a steadily increasing money flow will result in a steadily climbing percentage of persons choosing to ride public transit; and

• Assumption No. 3: That the specific transit projects plaintiffs seek to be funded will result in persons choosing to ride transit rather than drive their cars, and as a result, improve air quality in the Bay Area.

Each of these assumptions underlying the remedy plaintiffs seek is undeniably false. MTC cannot control the decisions of millions of persons on a daily basis—factors out of MTC’s control influence the countless decisions made by Bay Area residents whether to ride transit. Even if MTC could mandate that all of the available money be spent on transit, it still could not guarantee that it would achieve—and forever maintain—a specific ridership increase. Indeed, although the amount of money devoted to transit has steadily climbed over the last twenty years, the number of people riding transit does not consistently correlate to money expended. And the specific AC Transit projects plaintiffs seek to fund are on their face intended to assist “autoless” riders, not those who could choose to leave their automobiles behind and take transit. The CMAs are aware of no evidence suggesting that increasing the already disproportionate portion of the RTP funding currently earmarked to assist transit-dependent riders would increase “choice” ridership or consequently do a single thing to improve air quality. Instead, it will force the CMAs to devote precious resources repeating the cumbersome and time-consuming process of evaluating the competing transportation projects to permit an amendment of the 2001 RTP, and presumably delay if not quash other worthy projects that will do at least as much to improve air quality.

The Court should not grant a permanent injunction that requires the MTC to reopen or amend the current RTP.

II. Statement of facts

A. Bay Area County Congestion Management And Countywide Planning Agencies

The Bay Area county “congestion management agencies” were created by AB 471 (Chapter 106), Statutes of 1989, and the subsequent passage of Proposition 111 in 1990, which increased the gas tax in California and was “co-joined” to AB 471. Cal. Gov’t C. § 65088 et seq. Declaration of Daryl K. Halls, ¶ 3. These laws required that each “urbanized” county create a congestion management agency, and adopt a congestion management program, in order to be eligible for state and federal funds. Id. These congestion management agencies were created through designation by a majority of the cities, representing a majority of the population of the incorporated area, and by the county board of supervisors. Id.; e.g., MTC Declaration of Robert McCleary, ¶ 4. Local jurisdictions were required to meet standards adopted in the congestion management program in order to be eligible for the increment of gas tax funds provided through Proposition 111. Id.

The Alameda County CMA was created in 1991 as a joint powers agency consisting of the County of Alameda, all 14 cities in the County, AC Transit, Union City Transit District, Livermore Amador Valley Transit Authority and BART. Declaration of Dennis Fay, ¶ 3. Its functions and responsibilities include coordinating transportation planning and funding programs within Alameda County and with contiguous counties; coordinating countywide input to the California Clean Air Act and Transportation Control Measures of the MTC and the Bay Area Air Quality Management District (“BAAQMD”); and the State’s Traffic Congestion Relief Program; programs funds for the Alameda County share of the State Transportation Improvement Program (“STIP”); and acting as overall program manager in Alameda County for administering Transportation for Clean Air Funds controlled regionally by the BAAQMD, and develops a countywide transportation plan to guide transportation funding and service decisions over both the long and short term. Id.; Cal. Gov’t C. § 65089.

The Contra Costa Transportation Authority, created as a county transportation authority pursuant to Public Utilities Code sections 18000 et seq., was designated as that county’s CMA in 1991. Amicus McCleary Decl., ¶ 4. The Marin Congestion Management Agency and the Solano Transportation Authority came into existence shortly after the passage of Proposition 111, and perform functions similar to Alameda and Contra Costa’s agencies. Declaration of Farhad Mansourian, ¶¶ 3-4; Halls Decl., ¶ 3.

Santa Clara Valley Transportation Authority (“VTA”) was formed in August 1990 as a Joint Powers Agency (JPA) with the fifteen cities in Santa Clara County and the County Board of Supervisors. Declaration of Michael Evanhoe, ¶ 3. In 1995, the Santa Clara Valley Transportation Authority was designated as the Administrator of the CMA under a new JPA as agreed to by the fifteen cities and the County Board of Supervisors. Id.

The City/County Association of Governments of San Mateo was formed in 1991 and functions as the Congestion Management Agency for San Mateo County. Declaration of Richard Napier, ¶ 3. It prepares a congestion management plan addressing the statutorily-required elements. Id., ¶ 4.

The Sonoma County Transportation Authority (“SCTA”) also was formed in 1991 as a countywide Joint Powers Agency (JPA) charged with coordinating planning, programming, and funding for highways, streets and roads, transit and paratransit, and bikeways among its ten member agencies. Declaration of Suzanne Wilford, ¶ 3. In 1997, when the Legislature rescinded the mandate requiring each urban county to have a CMA, the SCTA opted out of that function, but SCTA continues to perform most of the planning and programming functions performed by CMAs. Id., ¶ 4.

In 1998, Napa County assigned congestion management planning to its Transportation Planning Agency, which also is the regional governing body for fixed route transit, paratransit, and community shuttles, and the program manager for Transportation Funds for Clean Air Act funding. Declaration of Michael Zdon, ¶ 4. Napa County utilizes this countywide planning agency to submit its strategic transportation plan to MTC after a one and a half year county planning process. Id., ¶¶ 5-8.

B. The County Transportation Plans

As required by state law, each CMA must adopt or amend its congestion management program every two years after considering public input and consultation with local governments, the local air pollution control district or air quality management district, the transportation planning agency and the regional transportation providers. Cal. Gov’t C. § 65089. The six mandatory elements of this program are detailed in the statute, and include: (1) measuring traffic level of service standards (the capacity of highways and major roadways); (2) a “performance element,” requiring the evaluation of current and future multimodal system performance for the movement of people and goods; (3) a “travel demand element” that promotes alternative transportation methods such as carpools, vanpools, transit and bicycles, park-and-ride-lots, improving the balance between jobs and housing, and parking management programs; (4) analysis of the impacts of land use decisions on regional transportation systems; (5) a seven-year capital improvement program to increase the capacity of the multimodal system, based on the data obtained under the performance element above; and (6) a uniform database on traffic impacts for use in a countywide transportation computer model. Cal. Gov’t C. § 65089; Halls Decl., ¶ 4; MTC McCleary Decl., ¶ 6.

The county CMAs submit their congestion management programs to the MTC to evaluate the consistency between the programs and the regional transportation plans, and if they are found consistent, then the MTC incorporates the programs into the regional transportation improvement program (RTIP). Cal. Gov’t C. § 65089.2(a)-(b); Evanhoe Decl., ¶ 4; Fay Decl., ¶ 4; Halls Decl., ¶ 4; MTC McCleary Decl., ¶ 6; Napier Decl., ¶ 4; Wilford Decl., ¶¶ 5-6; Zdon Decl., ¶ 5. By statute, no surface transportation program funds or congestion mitigation and air quality funds shall be programmed for a CMA project unless found to be in conformity with the congestion management program, unless the MTC finds the project of regional significance. Cal. Gov’t C. § 65089.2(c)(1).

While the MTC has control over the purse strings, it is the CMAs in the first instance that determine which county projects should be considered for state and federal transportation funding. Evanhoe Decl., ¶¶ 5-7; Fay Decl., ¶ 4; MTC McCleary Decl., ¶ 6; Napier Decl., ¶¶ 5-8; Wilford Decl., ¶ 7; Zdon Decl., ¶¶ 6-7. These transportation projects include public transit as well as bicycle and pedestrian paths and amenities, highways, carpool (“HOV” or “high occupancy vehicle”) lanes, vanpool programs, and other beneficial measures. Evanhoe Decl., ¶¶ 5-6; Fay Decl., ¶ 9; Mansourian Decl., ¶ 4; MTC McCleary Decl., ¶¶ 7-13; Napier Decl., ¶ 13. By statute, the county congestion management programs also must include efforts to increase the capacity of the county multimodal program, and that goal cannot be achieved by ignoring roads and highways. MTC McCleary Decl., ¶ 13; Cal. Gov’t C. § 65089(b)(5). When assigning funding actually available (typically on a two-year cycle, looking five years into the future) to the list of projects in the RTP, the county agencies determine which highway, local streets and roads, transit and bicycle projects to fund based on a careful assessment of numerous factors, with the goals of reducing congestion, improving air quality and balancing the various transportation choices offered to Bay Area residents. MTC McCleary Decl., ¶ 13. In prioritizing improvements, some county agencies also consider their responsibilities under the voter-approved initiative that created the agency, which dedicated funding for specific highway and transit projects, and established priorities for continued investment. Id.; Evanhoe Decl., ¶ 5; Napier Decl., ¶ 15.

The cost of potential projects far exceeds the money available, and all RTP projects must have identified sources of funding. Declaration of Chris Brittle, ¶ 8. Not surprisingly, the congestion management and countywide planning programs (“CMP”) are subjected to intense public scrutiny and debate at every step of the process. Id., ¶ 14-15; Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5, 7; Halls Decl., ¶¶ 5 and 7; Mansourian Decl., ¶¶ 4, 6; MTC McCleary Decl., ¶ 14; Napier Decl., ¶ 6-7; Wilford Decl., ¶¶ 8-9; Zdon Decl., ¶¶ 8-9; Cal. Gov’t C. § 65089(a). For instance, in Sonoma County, the planning process started nearly two years before final adoption of the plan with a series of facilitated meetings involving SCTA Board members, staffs from the ten member agencies, transit operators, private sector interests, and individual citizens and other agencies. Wilford Decl., ¶ 8. The meetings provided an opportunity to discuss the purpose of the county transportation plan, its relationship to the RTP, and the process and goals for its development. Id. Three specific agency and citizen committees were used in the planning process, including the Technical Advisory Committee (TAC), the Countywide Bicycle Advisory Committee (CBAC), and the Citizens Advisory Committee (CAC). Id. Numerous meetings were held at each of the nine city council meetings, before the Board of Supervisors and at the SCTA. Id. Before the actual development of the written plan, five community meetings were held throughout the county to gather public input. Id.

Sonoma and Napa Counties even hired a contracted facilitator to help achieve the best level of consensus possible on recommended actions given the financial, environmental, and philosophical differences among those who live and work in those Counties. Zdon Decl., ¶ 9; Wilford Decl., ¶ 9. The objective was to develop a transportation system that enhances the quality of life of its users, fosters community livability, and protects the unique rural and agricultural land use characteristics of the region. Id. Other counties have also sought input from committees representing diverse viewpoints. E.g., Evanhoe Decl., ¶ 7; Fay Decl., ¶ 5; Mansourian Decl., ¶ 4. Groups such as the Environmental Defense Fund, the Sierra Club, the Bay Area Transportation and Land Use Coalition, as well as Chambers of Commerce, provide input. Fay Decl., ¶ 5.

Given the breadth of public input, it is not surprising that this process to prepare and adopt a county plan takes many months, and often over a year. Evanhoe Decl., ¶ 7 (almost two years); Fay Decl., ¶ 12 (nine months); Mansourian Decl., ¶ 4 (nearly two years); Wilford Decl., ¶ 8 (nearly two years); Napier Decl., ¶ 7 (almost 10 years); Zdon Decl., ¶ 8 (18 months). Additional public scrutiny occurs once MTC receives the county plans. MTC reviews the CMPs for consistency with its adopted RTP. Cal. Gov’t C. § 65089.2. Then, when MTC prepares its new RTP, selected projects are drawn from the CMPs by the CMAs and are submitted to the MTC, which considers what to include in its draft RTP as new or changed projects, obtains public feedback, determines which projects to include in its draft RTP, subjects the draft RTP to review under the California Environmental Quality Act, and then adopts necessary findings under the California Environmental Quality Act. MTC McCleary Decl., ¶ 15. Only after this entire process is completed does the RTP become final upon MTC board approval. Id. The current RTP required approximately a year for MTC to complete this review. Id.

The current RTP thus includes the fruits of this lengthy and time-consuming process. Reopening the RTP will affect not only the MTC, but also each county CMA. Reopening the RTP may delay currently funded transportation projects, and could jeopardize existing funding if deadlines are missed. Evanhoe Decl., ¶ 10; Fay Decl., ¶ 12; Halls Decl., ¶ 11; Mansourian Decl., ¶ 10; Napier Decl., ¶ 14; Zdon Decl., ¶ 19. As detailed below, this lengthy process would divert scarce resources from current CMA projects without materially improving air quality. Indeed, it could have the opposite effect.

III. Legal argument

A. This Court Must Consider The Public Interest In Determining What Remedy To Provide Plaintiffs

The issue before the Court is whether to issue an injunction, and if so, what the injunction should provide. As noted by our high court, “[a]n appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.” Meredith v. Winter Haven, 320 U.S. 228, 235, 64 S.Ct. 7, 11 (1943); accord, Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994). The Court has also cautioned that “an injunction is an equitable remedy that does not issue as of course.” Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). The court must “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. Moreover, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id., quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1802, 72 L.Ed.2d 91 (1982).

In conducting this inquiry, the court must consider the public interest in denying injunctive relief. Id., 456 U.S. at 312. For instance, in Charter Township Of Huron, Michigan v. Richards, 997 F.2d 1168 (6th Cir. 1993), the two towns challenged landing and take-off procedures implemented by the Federal Aviation Administration (FAA) as having been adopted without complying with the National Environmental Policy Act (NEPA), and sought a mandatory injunction to require that the FAA return to its prior procedures. Although the FAA had not strictly complied with NEPA, it had considered the environmental impact of its changed procedures after-the-fact, and the court found that the public interest would be better served by denying the mandatory injunction sought. Id. at 1175.

When considering the public interest, the court should focus on the underlying public purpose embodied in the statute in question. For instance, in Weinberger v. Romero-Barcelo, supra, 456 U.S. 305, the Court of Appeals enjoined the Navy from discharging ordnance into the sea until it obtained a Water Pollution Control Act permit. The Supreme Court reversed, finding that the underlying purpose of the statute was to avoid water pollution, and since there was not a showing of such pollution, the Navy should be permitted to continue discharging ordnance while it obtained the necessary permit. Id. at 314-315. Following Romero-Barcelo, the High Court in Amoco Production Co., supra, also reversed the appellate court’s entry of an injunction. The Court found that the purpose of the statute in question was to protect Alaskan subsistence resources from unnecessary destruction. The Ninth Circuit erred in presuming irreparable damage when the public agency failed to evaluate thoroughly the environmental impact of a proposed oil exploration, and the evidence reflected that injury to subsistence resources from the exploration in dispute was not at all probable. The Ninth Circuit failed to balance the injury to the other side, which had invested approximately $70 million into the exploration. And the Ninth Circuit also erred in failing to consider the public interest in promoting energy production as balanced against the public interest in preserving environmental resources. Id. at 545-46.

The Court also must consider the effect of a requested injunction on non-parties to the litigation. Ward v. Walsh, 1 F.3d 873, 879-80 (9th Cir. 1993), cert. denied, 510 U.S. 1992 (1994). As shown below, the effect of the injunction plaintiffs here seek on the county transportation agencies would be devastating to the agencies and to the public interest in achieving responsible transportation planning.

1. Reopening The RTP Does Not Serve The Public Interest Because The Current RTP Will Improve Air Quality And Increase Transit Ridership

There is no dispute here that the public purpose underlying the Clean Air Act is to foster improved air quality. But the specific remedy plaintiffs seek loses sight of the ultimate public policy objective, and harms the public interest in numerous ways.

Plaintiffs seek an injunction requiring that “[b]y no later than November 9, 2006, MTC and MUNI shall ensure that regional transit ridership in the Bay Area has increased to at least 578 million annual boardings.” To achieve this result, plaintiffs ask that the injunction require that MTC amend its RTP to specify particular transit projects to which it will allocate funding, and set interim milestones for the regional ridership increases to be gained under the amended RTP. Assuming that plaintiffs envision that this process would result in MTC allocating more funding to additional transit projects than currently included in the RTP, then this Court must consider whether the public interest is served by such a process and result. Amoco Production, supra.

The plaintiffs have proffered no evidence to show that the projects included in the current RTP are insufficient to improve air quality, or even to increase transit ridership. The only evidence in the record is to the contrary.

First, the current RTP devotes 77 percent of available funding to transit operations, maintenance, and capital projects. As detailed by the executive directors of many of the affected counties, the projects promise to greatly enhance and improve public transit in the Bay Area. Evanhoe Decl., ¶ 6; Fay Decl., ¶ 8; Halls Decl., ¶¶ 8-10; MTC McCleary Decl., ¶ 12; Mansourian Decl., ¶ 8; Napier Decl., ¶ 9; Wilford Decl., ¶¶ 17-18; Zdon Decl., ¶ 17. The RTP includes operating funds for AC Transit, Muni, SamTrans, Golden Gate Transit, BART, County Connection, WestCAT, Tri-Delta and Caltrain from sources largely dedicated to that purpose. Id. It also designates millions of dollars to fund expand transit by projects such as BART from Fremont to San Jose/Santa Clara, Alameda Commuter Express train from Stockton to San Jose; a BART extension to Warm Springs in Fremont; connecting BART to the Oakland airport; the downtown /East Valley Light Rail Line in Santa Clara County, the Central Subway project in San Francisco, expansion of the Vallejo Baylink Ferry Service, as well as to fund new “intermodal” stations to enhance the public’s ability to transfer between transit systems, new express buses, capital improvements to enhance existing transit systems, upgrades of fare collection systems, station and facility rehabilitation projects, advanced train control systems, and parking and lighting improvements for certain BART stations. Id.

Second, the current RTP incorporates dozens of other projects that will improve air quality in the region. Napa County, for instance, has “rideshare” funding, electric vehicles, park and ride lots, and new bikeways. Zdon Decl., ¶ 16. Bicycle riders stand to gain significant new trails and facilities throughout the Bay Area. Evanhoe Decl., ¶ 6; Mansourian Decl., ¶ 6; Napier Decl., ¶ 9(d). Marin and Sonoma are developing a new passenger rail service for those counties. Wilford Decl., ¶ 15.

Third, the RTP helps counties to satisfy the requirements of the “travel demand” component of their CMPs. Pursuant to Government Code section 65089(b)(3), the travel demand element promotes and supports alternatives to the solo occupant automobile (carpools, vanpools, transit and bicycles), increased use of park-and-ride lots, improvements in the balance between jobs and housing, and other strategies for reducing vehicle trips such as flexible working hours, telecommuting and parking management programs.

Construction of parking facilities at BART stations, new inter-modal facilities at strategic locations, providing financial incentives to build housing near Caltrain stations; SMART passenger rail service in Sonoma County, carpool lots and bus centers, and shuttle projects are examples of projects anticipated under the current RTP and designed to improve travel demand. Evanhoe Decl., ¶ 6; Fay Decl., ¶ 8; Halls Decl., ¶ 7; MTC McCleary Decl., ¶ 11; Napier Decl., ¶ 10; Wilford Decl., ¶ 18; Zdon Decl., ¶ 15. In addition, the counties are spending millions per year in TFCA and sales tax funds to guarantee transit riders a ride home in an emergency, encourage carpooling and vanpooling, and establish transit pass and transit web information system programs. Halls Decl., ¶ 7-8; Fay Decl., ¶ 9; MTC McCleary Decl., ¶ 11; Napier Decl., ¶ 11; Wilford Decl., ¶ 14-18; Zdon Decl., ¶ 16.

Much of the proposed investment in state highway improvements also are designed to improve air quality. High occupancy vehicle (HOV) lanes facilitate improved express bus service (including those linking adjoining counties), as well as encourage carpools and vanpools. Fay Decl., ¶ 9; Mansourian Decl., ¶ 8-9; MTC McCleary Decl., ¶ 16; Halls Decl., ¶ 9. By reducing road/highway congestion, these projects further promote efficient bus travel. MTC McCleary Decl., ¶ 16. Other projects are targeted to maintaining roads and highways in good condition, and/or expanding local arterials, again benefiting bus services. Id.; Evanhoe Decl., ¶ 6; Halls Decl., ¶ 9. Some projects are intended to make the roads and bridges significantly safer. Mansourian Decl., ¶ 9; Napier Decl., ¶ 12.

In short, the only evidence before the Court demonstrates undeniably that the current RTP includes billions of dollars targeted for projects to improve air quality. There is no evidence to suggest, let alone compel, a finding that these worthwhile projects should be jeopardized in order to promote the transit projects plaintiffs prefer. This is particularly true because the current RTP already channels 77 percent to transit projects and MTC’s forecasts that transit ridership is projected to increase to the 15% increase level by mid-2007. Declaration of Christopher Brittle, ¶ 6.

Indeed, requiring MTC to reopen the RTP for yet another study of potential projects is exactly the mechanical formalistic approach the Supreme Court condemned in Romero-Barcelo and Amoco Production. As in those cases where the formalistic requirement of obtaining a permit or preparing a formal environmental assessment was improperly the focus of the Court of Appeals’ inquiry, it would be improper for this Court to focus on whether the RTP contains a separate chapter on the implementation of TCM 2 on its pages, where the RTP as a whole in fact implements TCM 2 as the Court has construed it. As discussed below, the public interest will be harmed by the remedy plaintiffs seek.

2. Requiring MTC To Reopen The RTP Will Detrimentally Affect The Congestion Management Agencies And Their Statutory Role

In weighing the balance of harms, this Court should consider that re-opening the RTP to possible amendment would dramatically and adversely affect the county transportation agencies.

As detailed in the declarations of the county executive directors, the process of selecting the myriad projects to be included in the RTP is lengthy, extensive and politically inclusive. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5, 7; Halls Decl., ¶ 7; Mansourian Decl., ¶ 4, 6; MTC McCleary Decl., ¶¶ 14-15; Napier Decl., ¶¶ 6-8; Wilford Decl., ¶¶ 8-9; and Zdon Decl., ¶¶ 8-9. These county agencies solicit the input of a broad range of staff, government entities and the public (including labor, environmental groups, and business) to obtain comprehensive input, feedback and participation in the selection process. Id.

For instance, the Contra Costa Transportation Authority developed its congestion management program, and its input to the RTP, through the extensive participation of a technical coordinating committee, which includes members representing MTC, Caltrans and the county’s five transit operators (AC Transit, County Connection, Tri-Delta Transit, WestCAT and BART), as well as representatives from the local communities and other interested agencies. MTC McCleary Decl., ¶ 14. Transit agency board members also participate as members of specific sub-regional transportation planning committees, which assist in planning transportation projects within their discrete geographical area and review drafts of CMP components. Id. In addition, a citizen’s advisory committee provides oversight on key CMP policies and programs, and the Authority has a bus transit coordinating committee and a paratransit coordinating committee. Id. The Authority has numerous outreach efforts covering the four sub-areas of Contra Costa. Id. The Authority also consults with the Bay Area Air Quality Management District and with Alameda, Solano, Santa Clara and San Joaquin Counties, as well as with representatives of local government from all jurisdictions in the county. Id. Each county seeks input from the affected citizens, cities, counties, transit operators, and other agencies. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5, 7; Halls Decl., ¶ 7; Mansourian Decl., ¶ 6; Napier Decl., ¶ 6; Wilford Decl., ¶¶ 8-9, 19; Zdon Decl., ¶ 8-9.

As this process evolves, and before either the congestion management plan or specific proposals for project listings from the plan to be included in the RTP are sent to MTC for its review, the documents are scrutinized in draft and final form in public meetings by CCTA’s Planning sub-committee, then by the 11-member board of commissioners, which consists entirely of local elected officials from throughout the county. MTC McCleary Decl., ¶ 15. The other counties utilize similar programs to obtain the opinions and feedback of all interested constituencies, and to balance competing needs and interests. Evanhoe Decl., ¶ 7; Fay Decl., ¶¶ 5, 7; Napier Decl., ¶ 6; Wilford Decl., ¶¶ 8-9, 19; Mansourian Decl., ¶ 4; Zdon Decl., ¶ 8-9.

To perform this delicate balancing, however, takes substantial time and effort. The nature of the extensive amendments sought by plaintiffs, including consideration of trade-offs, public outreach, public review by the CMAs and their constituent committees, and CEQA review by MTC, would require many months to complete. Fay Decl., ¶ 12; Mansourian Decl., ¶ 10; MTC McCleary Decl., ¶ 18; Wilford Decl., ¶ 20; Zdon Decl., ¶ 8. Moreover, such a review would impose a heavy financial burden on these modest-sized county agencies. Santa Clara County, for example, estimates the process would cost the agency approximately $1 million, including staff time workshop and meeting expenses, printing costs for draft plans, printing public notices in local newspapers, hiring consultants and mailing expenses. Evanhoe Decl., ¶  9.

As part of the process, MTC solicits additional public input and feedback and performs its own independent review of projects submitted by the CMAs. MTC McCleary Decl., ¶ 15. The capital projects under consideration for inclusion in the financially-constrained RTP are subject to on-going discussions with MTC staff, who focus principally on promoting projects of regional significance, and projects that significantly impact inter-county travel. MTC has overruled local project or capital program proposals where it believes a regional policy interest is at stake, sometimes after considerable debate both locally and at MTC. Id. The current RTP required approximately a year for MTC to complete this review—which was an aggressive schedule. Id.

Plaintiffs nevertheless ask that this Court order MTC to reopen its carefully thought out RTP, and apparently expect that such a reopening will result in a shifting of money to new transit projects and away from other currently funded projects. The county CMAs – and the public interest -- would be adversely affected by such a process.

First, simply placing the projects included in the current RTP in limbo will harm the public interest. Reopening the RTP could jeopardize the funding currently committed to needed projects since that funding typically has time deadlines that must be met to avoid losing the funding. Fay Decl., ¶ 12; Halls Decl., ¶ 11; Mansourian Decl., ¶ 10; Napier Decl., ¶ 14. Some county transportation agencies would have to consider whether to spend the money to hire consultants to perform engineering, design review and environmental assessments that are preliminary to many of the transportation projects when funding may be in jeopardy. Halls Decl., ¶ 11. This is particularly true given that the plaintiffs want the reopened process to divert funds to their favored short term projects and, potentially, away from other short term projects that must be subjected shortly to preliminary reviews, final design and possible right of way acquisitions.

Second, should the MTC be required to consider deleting projects from the RTP in order to free up money to fund additional transit projects, the county CMAs would be forced to devote precious staff resources to determining which projects to delay or delete. The county agencies are modest sized at best, and thus cannot easily find staff time to perform such a time-consuming process. Evanhoe Decl., ¶ 10 (Santa Clara: equivalent of 5 staff members full time for 9 months); Fay Decl., ¶ 12 (Alameda: 3 out of 7 staff persons, approximately half time for 4.5 months); Halls Decl., ¶ 11 (Solano County: 80 person hours for two staff persons for 4 months); Mansourian Decl., ¶ 10 (Marin: one sixth of its annual budget for 1 full time staff person for half a year); MTC McCleary Decl., ¶ 18 (Contra Costa: 1 out of 5 staff persons full time for 12 to 18 months); Wilford Decl., ¶ 20 (Sonoma: full time planner for at least one year; almost a third of the agency’s annual staff budget); Zdon Decl., ¶ 20 (Napa: 2 full time planners for equivalent of one year, cost of $120,000 for staff time). They would need to devote a substantial portion of employee-hours to perform such a task if MTC were to be compelled—as plaintiffs demand—to amend the RTP by next January. Id. They thus cannot afford to divert staff hours to such a project without deferring other work they are obligated to perform. Id.

Third, upsetting the careful balance drawn by the counties will adversely affect air quality and other important public goals. Deleting committed projects to create an opportunity for new transit investment would not necessarily benefit air quality, and could worsen it – much of the targeted investment is in high occupancy vehicle lanes, parking and other capital support facilities for transit that could potentially be more attractive to choice riders than the proposals supported by plaintiffs. MTC McCleary Decl., ¶ 18. If the RTP were invalidated, and work were brought to a halt on projects approaching implementation (including HOV lane projects supporting carpools, vanpools and inter-county bus transit service), congestion will increase compared to the alternative of moving forward with the adopted RTP, thereby increasing both localized and regional emissions of NOx and HC. Id. Permanent elimination of a number of the most critical projects could, over the long term, also lead to increased congestion compared to the current RTP, and thereby would probably result in worsened air quality. Id., ¶ 19.

Fourth, the county CMAs are required by statute to prepare congestion management programs that consider travel methods other than transit. Bicycles, carpools, vanpools and park-and-ride lots are examples of other transportation methods that must be considered in developing a county plan. Cal. Gov’t C. § 65089(b)(3). The congestion management program also must include efforts to increase the capacity of the county multimodal program, and that goal cannot be achieved by ignoring roads and highways. Cal. Gov’t C. § 65089(b)(5). The public interest in achieving these valid goals must be considered in crafting any equitable remedy.

The public interest simply is not served by the drastic remedy plaintiffs seek. This is particularly true given that the remedy they desire is founded on inaccurate assumptions, to which we now turn.

B. The Remedy Plaintiffs Seek Cannot Be Shown To Be Effective Or In The Public Interest Because It Is Based On Unfounded Assumptions

1. Simply Spending More Money On Transit Does Not Necessarily Guarantee Increased Ridership Because MTC Does Not Control The Daily Decisions Of The Potential Transit Riders

The first implicit assumption plaintiffs make is that if MTC only spends more money on transit, then ridership increases will follow on a steadily increasing slope. For instance, in 2003 we would see a 4 percent increase over the base figure, in 2004 we would find a 7 percent increase, and so on until we reach—and maintain—at least a 15 percent increase. If this were true, then perhaps the remedy plaintiffs seek might make sense. But the fundamental assumption is false.

Transit ridership levels depend on the individual decisions of tens of thousands of consumers every day, who are influenced by, among other variables: (a) where each consumer works, lives, shops and seeks recreation; (b) the convenience, timeliness, and cost of available alternative modes of travel, including the cost of gas and parking; (c) public perceptions and desires relative to the safety, comfort, flexibility and ease of use of those various alternatives; and (d) the socio-economic characteristics, education level, and other attributes of the consumer. Amicus McCleary Decl., ¶ 6; Wachs Decl., ¶ 15.

The effect of these external factors is pronounced: public transit use in the United States fell by 12 percent (over a billion boardings) between 1990 and 1995, when unemployment grew, even though vehicle miles of transit service grew by 5% during the same time period. Wachs Decl., ¶ 15(a). Conversely, transit usage rose by 21 percent when unemployment fell to record lows. Id.

Experts researching the relationship between spending money on transit and ridership have found that “subsidies to new transit systems have proven cost-ineffective, and transit continues to lose ground to the automobile despite major public expenditures.” Wachs, M. “Policy Implications of Recent Behavioral Research in Transportation Demand Management,” Journal of Planning Literature, Vol. 5, No. 4 (May 1991)(Ex. B to Amicus McCleary Decl.) at p. 334.
One National Research Council study compared the elasticities of decreasing and increasing fares with expanding transit service. As that body concluded, “(t)he data suggest that ridership tends to be one-third to two-thirds as responsive to fare change as it is to an equivalent percentage change in service.” Ex. A to Amicus McCleary Decl., at p. 10-12. These elasticities do not indicate what percentage of auto drivers would be diverted to transit with service and/or cost changes; only the anticipated effect of such changes on likely transit patronage levels. Id. The study notes, for example, that patrons are less likely to choose transit if they spend too much time walking to or from transit, or waiting for transit to arrive, but that lengthening the time spent on the bus or train does not reduce patronage. Id. at p. 10-35. Armed with knowledge of these tendencies, transit and planning agencies can maximize their likelihood of success, but still cannot guarantee it.

This leads directly to the second erroneous assumption plaintiffs make: that MTC can control these factors, or the decisions of the Bay Area population who daily choose whether to ride transit. MTC cannot dictate the price of gas, it cannot stop employers from laying off workers in recessionary times, and it cannot guarantee that persons won’t fear riding certain transit systems. Neither MTC nor the CMAs can hold a gun to the heads of the public and force them to ride transit. As a result, the Court should not issue an order that compels MTC to achieve a result it has no actual ability to control or guarantee.

There are other constraints on MTC’s ability to increase transit ridership. MTC does not control the decisions of the region’s transit operators that affect their costs or their operations, such as how much transit districts chose to pay their employees or the terms of their collective bargaining agreements (such as permitted absenteeism). Funding expansion of transit service might increase ridership in the short term, but spiraling labor costs later can result in necessary service cutbacks and an eventual decrease in ridership.

2. The Transit Projects Plaintiffs Advocate Have Not Been Shown As Likely To Improve Air Quality

Even if MTC could realistically guarantee that a specific number of transit boardings would occur, the transit projects plaintiffs and AC Transit seek will not result in a 15 percent increase in persons choosing transit over automobiles, and thus the desired improvement in air quality. The reason is that all transit riders are not equal in terms of their impact on air quality. Amicus McCleary Decl., ¶ 6. Some transit riders utilize public transit because they have no alternative—they do not drive or own cars, either because of physical limitations, age restrictions (too young or old), or economic considerations. Id. By contrast, choice riders can afford to drive, or to take van or carpools, but choose instead to ride public transit. Id. Coaxing choice riders away from their automobiles and onto public transit is the result plaintiffs should seek, because it is the only result that could possibly improve air quality. Id. Unfortunately, if transit ridership gains derive entirely from the transit dependent, then new trips by the transit dependent would by definition be trips induced largely as a result of making transit more affordable or more convenient, but would not typically result in diversion of an automobile trip. Id., ¶ 7. To the extent that increased ridership comes from transit-dependent riders, there is no air quality benefit, although there may be other societal benefits. Id.; Wachs Decl., ¶ 18.

Plaintiffs meanwhile advocate the transit projects listed in AC Transit’s “Strategic Vision” – a blueprint which admits it was prepared as part of the Consent Decree signed in this litigation in order to “develop a plan that would, if fully funded, meet the ridership goal[]” of a 15 percent increase of annual boardings over 1982 levels. Strategic Vision, at pp. 5-1 to 5-2. That Strategic Plan states that its proposed “service plan was prepared by making “environmental justice issues …among those first considered and addressed in developing how service would be deployed as part of both a financially constrained operating model, or if additional resources were available for a more robust operating scheme.” Id., at p. 5-5. To achieve these environmental justice goals, “[m]aps that depicted low income and/or autoless households (often a surrogate to poverty or disability) were compared to recommended routing or frequency changes to determine general and/or specific impacts to those populations. In most cases, recommended improvements to the network directly and positively impacted those neighborhoods with the highest concentrations of both low income and Calworks households.” Id.

As the Plan summarizes, “[I]mproving transit service in the urban core and on trunk lines contributes to social equity and environmental justice by improving the mobility of lower income residents.” Id. This is most likely true, but it is equally true that improving the mobility of persons who cannot drive automobiles does nothing to further the goals of the Clean Air Act, which, after all, provides the only legal basis for the remedy sought.

The number of “choice riders” is relatively small. As the National Research Council found, “[i]ncreases in vehicular traffic on the order of 6 to 16 percent have been observed on the affected approaches to the central city during transit strikes. Otherwise, reductions in auto traffic in response to bus transit routing and coverage changes have usually been too small or gradual to be measured directly.” Ex. A to Amicus McCleary Decl., at p. 10-6. To attract new transit trips from the private automobile, transit needs to be convenient, fast, and dependable. Amicus McCleary Decl., ¶ 8. Historic studies and statistical analyses for computer modeling have determined that, collectively, choice users are two to three times more sensitive to travel time (and convenience) than to cost when deciding between an auto trip and transit. Id. Because of the low densities in much of the Bay Area and the diverse destinations for work, shopping, recreation and other trips, in many instances it is very difficult for transit to compete effectively with the automobile in attracting such diverted trips. Id.

High-speed systems like BART and Caltrain offer the best opportunity for travel time competition, but access and egress from the main travel link remain challenges to making the transit trip time-competitive. Id. Often, a “linked” trip by transit can take 50 to 100 percent longer than the same trip by automobile, even if the auto experiences congestion. Id., ¶ 11. Moreover, some studies suggest that individuals are most sensitive to access and waiting times for transit – more so than to “line-haul” times – and so high frequency of service and convenient access are important in attracting auto users to transit. Id.

Unfortunately, convenient access often means auto parking, which defeats part of the air quality benefit of transit; and more frequent service is also more expensive. Id. Consequently, these factors must be taken into consideration when attempts are made to predict the diversion of auto drivers to transit, and the resulting air quality impacts, when assessing specific new service proposals. Id. These factors have been considered by the CMAs and MTC in preparing the current RTP and authorizing the specific transportation projects included in the RTP. Id. While many of these specific projects are anticipated to increase transit ridership and improve air quality, many will not be completed within five years due to the lengthy time they require to fund, design, engineer, and construct. Id. They nevertheless represent the best hope for attracting automobile drivers to transit. Id.

The adopted RTP emphasizes expansion of high-speed transit, albeit with certain operational improvements due in a longer time frame than sought by plaintiffs. Id. From the perspective of permanently improving air quality, the major new RTP proposals such as BART extensions also offer the possibility of influencing land use densification, which is essential to truly change travel patterns and reduce the dependency on the automobile. Id., ¶ 9; see Napier Decl., ¶ 10. In contrast, if regional decisions favor improving transit for the transit-dependents, it could discourage investment in the capital improvements such as BART extensions that are the most likely to facilitate higher transit use and attract “choice” riders. Id. As noted by Professor Martin Wachs of the University of California at Berkeley’s Institute of Transportation Studies, the tendency of European and Canadian residents to use transit, bicycle or walk are not based on cultural differences or attributable to learned tastes or preferences, but instead are related to substantial differences in their transportation, taxation and land-use policies. Wachs, supra, at p. 335, citing Pucher (1988)(Ex. B to Amicus McCleary Decl.). The CMAs advocated --and the RTP includes--a strong effort to promote capital investments in transit systems that will facilitate long term land use changes favoring transit patronage, recognizing that imposing higher gasoline and automobile excise taxes, and decreasing the amount of subsidized parking, is beyond their purview. Amicus McCleary Decl., ¶ 10; Napier Decl., ¶ 10.

Plaintiffs have not shown that the injunction they seek will improve air quality, and thus the remedy is not justified.

IV. Conclusion

The CMAs determine which highway and road projects to fund based on a careful assessment of numerous factors, with the goal of reducing congestion, promoting a healthy environment, and balancing the various transportation choices offered to Bay Area residents. As transportation experts, they have carefully performed their statutory duty, with significant public input and direction, and they are proceeding to implement the chosen projects included in MTC’s current RTP. To the extent plaintiffs here seek to impose their own personal views on the right balance among these transportation alternatives, the Court should not enforce those views. It is not in the public interest to compel a different balance than designed in the current RTP, particularly when the transit projects plaintiffs propose will not improve air quality—the sole legal basis for this lawsuit and the remedy sought.

Dated: April 22, 2002


Alison S. Hightower
attorneys for amicI curiae